Debate swells on raising NJ judges’ retirement age

TRENTON – Justice Stewart Pollock retired from the state Supreme Court 15 years ago. And yet, today, at 81, he is still knee-deep in some of the most Byzantine areas of the law in his private practice, winning awards and accolades every year.

Some legal experts say that’s a good example of why the state constitution’s judicial retirement age — set at 70 — is a little behind the times. Many judges are still in their intellectual prime at that age, despite some gray hairs.

“When the constitution was adopted in 1947, life expectancy was shorter,” said Pollock, who decided to leave the court at age 66 and practices law at the Morristown firm Riker Danzig. “Now people live and work longer. It seems to me reasonable to extend it.”

The idea is not new. But it could gain steam this year due to a perfect storm of Trenton developments touching on everything from a depleted bench due to vacancies; stubbornly high case backlogs across the courthouses; and, a strained pension system desperately in need of any savings it can find.

This year, the state Supreme Court, the Legislature and Gov. Chris Christie’s administration are all grappling with the 70-year age cap in their own ways.

For seven years, a group of Republican lawmakers has pushed to raise the retirement age to 75. The latest plan is to put a constitutional amendment on the ballot and let voters decide in November.

“Regardless of profession — whether you’re a doctor, lawyer, schoolteacher — for some folks in terms of their intellect, it’s probably a bit young,” said Assemblyman David Wolfe (R-Ocean), the lead sponsor of the ballot initiative (ACR-129).

“Several years ago I attended two or three retirement testimonials for judges — they were all relatively spry,” he said. “I began to get some other responses from some other attorneys that this is an arbitrary deadline, especially when we have a lot of shortages in the different vicinages throughout the state.”

A state commission that reviews pension costs endorsed Wolfe’s proposal on Friday by a 5-1 vote, with support from members of Christie’s administration.

The Pension and Health Benefits Review Commission determined that if the retirement age was raised to 75, six judges currently on the bench would be able to cash in much bigger pensions.

But commission members said hundreds of others would be able to work longer — “shortening the time over which they will receive a pension” and thus reducing the burden on New Jersey’s strained retirement system, which is nearly $50 billion underwater and causing major headaches for Christie.

Tamara Kendig, a spokeswoman for the state judiciary, said neither the courts nor Chief Justice Stuart Rabner have taken a position on raising the retirement age to 75.

The New Jersey State Bar Association has come out in favor, however, and prominent legal experts including retired Chief Justice Deborah Poritz say 70 is too young. (Sitting Justice Barry Albin, at a speech last year, jokingly called 70 “the constitutional age of senility.”)

“They say that 70 is the new 60 because modern medicine has improved both the lifespan and the quality of life,” said another retired chief justice, James Zazzali. “However, the legislation should proceed cautiously because, for some, 70 is the new 90.”

Similar ballot measures to raise judges’ retirement ages have failed in recent years in Arizona, Louisiana, Ohio and New York. But in New Jersey, not raising it this year could have a big effect on courthouses around the state: A major case before the state Supreme Court could end up reducing drastically the number of judges hearing cases.

For decades, the Supreme Court has been able to recall retired judges — including those older than 70 — to lend a temporary hand in overloaded courthouses. There are 405 full-time state judges and justices in the state, all of them under 70. As of the end of April, there were another 73 judges on recall, and at least 56 of them were 70 or older, according to a list provided by the state judiciary.

Although the Legislature passed a law allowing such recalls in 1975, the New Jersey constitution says prominently that all judges and justices “shall be retired upon attaining the age of 70 years.”

Enter James Buckner, who is appealing convictions for robbery and aggravated assault. Buckner is arguing before the Supreme Court that his trial was unconstitutional because the recalled judge who presided over it was 73 at the time. It’s the first time anyone in New Jersey has appealed a case because the judge was older than 70.

An appellate court ruled against Buckner last month, saying that recalls are in line with two “overriding purposes” of the constitution — “to create flexibility in the court system and to provide for prompt judicial relief.”

One judge dissented, bemoaning the rise of a “gray-haired army of retiree jurists cloaked yet again with their former sovereign authority.” He said the constitution is crystal clear about judges having to step down at 70. “The language speaks for itself, and where found in our state constitution the language is the voice of the people,” Judge Jonathan N. Harris wrote.

Zazzali said former Gov. Brendan Byrne, a former judge, once debated the issue with Gov. Thomas Kean. Byrne said he preferred to keep the age cap at 70 so that young lawyers have an earlier opportunity to join the bench and because, although many judges can perform well, some may not due to advanced age. “Although there is merit to that view, because it is a close question, the retirement age deserves another look,” he said.

But Poritz, the retired chief justice, in an interview last year, said the courts have “lost some good people who were extremely fit” because of the age limit, and that she would favor switching to lifetime appointments.